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Turner v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 76

Turner v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 76

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Turner v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 076

PARTIES:

Turner, Paula

(Appellant)

v

State of Queensland (Queensland Fire and

Emergency Services)

(Respondent)

CASE NO:

PSA/2021/1

PROCEEDING:

Public Service Appeal – Conversion of fixed term temporary employment

DELIVERED ON:

10 March 2021

MEMBER:

Power IC

HEARD AT:

On the papers

OUTCOME:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the Appellant was reviewed under s 149A of the Public Service Act 2008 – whether the decision not to appoint the Appellant to a permanent role was fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), s 149A and 149B

Directive 09/20 Fixed term temporary employment, cl 8

Directive 08/17 Temporary Employment

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

  1. [1]
    Ms Paula Turner (the Appellant) is currently employed by the State of Queensland (Queensland Fire and Emergency Services) (the Respondent) in the position of AO4, Contracts Officer until 28 March 2021.
  1. [2]
    By appeal notice filed on 4 January 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) (the PS Act), appealed against a decision that her employment remain as fixed term temporary with the Respondent (the decision).

Appeal Principles

  1. [3]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [4]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision-making process associated therewith.
  1. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision by Gen Wilcox, Executive Director, Strategic Services of the Respondent to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment (the Directive).

What decisions can the Industrial Commissioner make?

  1. [6]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant provisions of the PS Act and the Directive

  1. [7]
    Section 149B of the PS Act relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department’s chief executive must decide whether to-
    1. continue the person’s employment according to the terms of the person’s existing employment; or
    2. offer to convert the person’s employment basis to employment as a General employee on tenure or a public service officer.
  1. (4)
    The department’s chief executive must make the decision within the required period after-
    1. the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
    2. each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision-
    1. section 149A(2) and (3) applies to the department’s chief executive; and
    2. the department’s chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment.
  1. (6)
    If the department’s chief executive decides not to offer to convert the person’s employment under subsection (3), the chief executive must give the employee a notice stating-
    1. the reasons for the decision; and
    2. the total period for which the person has been continuously employed in the department; and
    3. for a fixed term temporary employee-how many times the person’s employment as a fixed term temporary employee or casual employee has been extended; and
    4. each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment.
  1. (7)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person’s employment and to continue the person’s employment as a fixed term temporary employee or casual employee according to the terms of the employee’s existing employment.

…

  1. [8]
    Section 149A(2) of the PS Act provides:
  1. The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if-
  1. (a)
    the department’s chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and
  2. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. [9]
    Section 149A(3) of the PS Act provides:
  1. If the matters in subsection (2) are satisfied, the department’s chief executive must decide to offer to convert the person’s employment basis to employment as a General employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [10]
    The Directive relevantly provides:

8.   Decision on review of status

8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

  • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same
  • the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and
  • the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

8.3 If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
  2. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  3. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4 Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  2. (b)
    refer to the evidence or other material on which those findings were based.

8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

…

Grounds of Appeal

  1. [11]
    The Appellant outlined the following grounds of appeal, in summary:
  • whilst the Appellant's current position is owned by someone else and that there may be no ongoing need for the Appellant to perform that specific role, there is a continuing need for the Appellant's experience and skills to be utilised more broadly across the Respondent; and
  • in arriving at the decision not to convert the Appellant's employment status from temporary to permanent, only similar roles were sought out and no other genre of roles were considered, nor the Appellant's experience, knowledge and training related to the Respondent's broader operational activities.

Submissions

  1. [12]
    The Commission issued a Directions Order calling for submissions following receipt of the appeal notice.  

Respondent's submissions

  1. [13]
    The Respondent filed the following submissions. In summary:
  • the Appellant has been engaged on temporary contracts in different roles and classification levels (both AO4 and AO5) within the Respondent since 30 October 2017;
  • the roles performed by the Appellant include Team Leader, Administration, Industry Engagement, Alarms, Contracts (all in the Alarms Branch), as well as supporting State Operations Command Centre duties;
  • the Appellant is not currently the subject of a formal performance improvement process and is also not currently the subject of any unresolved performance concerns. Accordingly, there is no obstacle as to merit;
  • the role the Appellant is currently temporarily filling in is owned by absent substantive, Ms Haylee Potter, who is backfilling in higher duties at an AO5 role, owned by absent substantive Ms Claire Hamlyn, who is relieving in a temporary AO8 role. All these attachments are currently dated to end 28 March 2021;
  • the comments made by the human resource on the Fixed term temporary conversion checklist (the checklist) are relevant as alongside the other parts of the checklist, informs the decision-maker that conversion to permanency is not viable having regard to the genuine operational requirements of the Respondent, further confirming there is no continuing need for the Appellant to be employed in the role or a role that is substantially the same. Further the comments made by the reviewer on the checklist confirms favourable assessment of the Appellant's performance;
  • under notice to Deputy Commissioner, business plans, business cases and funding model of the Respondent has contemplated off-boarding Alarms services as noncore business of the Respondent during both current and previous financial year. Staff have been informed that the service was under review with no confirmed ongoing funding and that employment was finite, with all Alarms staff encouraged and supported to seek other employment opportunities within the Respondent and other Departments;
  • the Respondent submits that it has been acknowledged in a related Commissioner's briefing note dated 29 June 2020, the drivers for the changes identified as a consequence of the QFES service and alignment reviews included providing the foundation to ensure the successful achievement of QFES Strategy 2030, address matters identified in the QFES Environmental Scan conducted in February 2020, support the Organisational Alignment, support the principle of State develops strategy and standards while Regions deliver with communities, address Internal Audit recommendations and support the QFES Capability Framework implementation;
  • the Respondent submits that the Respondent is unable to convert the Appellant to permanency pursuant to the Directive because whilst the Appellant's performance is acknowledged and has met the merit principle, the continuing need test fails owing to the genuine operational requirements of the Respondent. Considerations for which involved the substantive ownership of the role by tenured officer Ms Potter and unfunded/uncertain future of Alarms' functions; and
  • the Respondent submits that the Commission should confirm the decision of the Respondent and dismiss the appeal.

Appellant's submissions in reply

  1. [14]
    The Appellant filed the following submissions in response to the Respondent's submissions. In summary:
  • the Appellant accepts that the role she is currently employed in is not vacant, and that there are no vacant funded substantive tenured roles available which are similar;
  • the Appellant submits that it should be considered that the Appellant have also been performing the secondary role of State Operations Centre (SOC) Administration/Command Support regularly for the last 12 months, including every second week during COVID-19 lockdown and beyond. The Appellant submits that the skillset and tasks performed in this role would deem her meritorious for roles below level (e.g. AO2 and AO3 – Administration Officer/Business Support Officer), and that similar roles should also be considered;
  • should the Appellant's employment end on 28 March 2021, the Respondent would lose a reliable, adaptable, trained team member to be called on for SOC activities during heightened operations;
  • whilst the Appellant has performed in many different roles within Alarms and done so happily, willingly and with full commitment to each, the Appellant submits that her flexibility and adaptability have disadvantaged her;
  • the Appellant submits that she was entitled to a temporary to permanent review on 30 October 2019, under Directive 08/17 Temporary Employment. The Appellant had enquired at the time and was verbally advised that this Directive was only applicable if an employee had occupied the 'same role' during the entire two year period. Consequently, the Appellant did not pursue the review. The Appellant submits that she had recently received conflicting advice from a colleague who was converted to permanent under this Directive, after two years of many different temporary roles in varying Units;
  • when the Appellant requested to initiate a review under the Directive, the Appellant was advised in writing that as her anniversary date was the following day, the agency would initiate the review instead. It was the Appellant's understanding that her review was initiated by the agency; and
  • the Appellant submits for the Commission to request the Respondent, with consideration to the prolonged engagement in a secondary role, to also consider appointing the Appellant to any permanent roles at other levels for which the Appellant would be considered meritorious for.

Consideration

  1. [15]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. The decision determined that the Appellant's employment remain as fixed term temporary.
  1. [16]
    The reasons given for the Respondent's decision, as outlined in the letter dated 8 December 2020, are as follows:

Considerations when making the decision

I have considered the requirements of the Public Service Act 2008 (PS Act), the Fixed term temporary employment directive 09/20 and your employment history, including any previous conversion review decisions. 

There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same AND you satisfy the merit principle. I have addressed these two aspects below.

Merit

Thank you for your performance in the role over the period with Queensland Fire & Emergency Services. You have demonstrated over this time that you satisfy the merit requirements for the role.

Continuing need

The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, my reasons are:

  1. there is no continuing need for you to perform your current role because the role is owned by another employee; and
  2. there is no continuing need for you to perform a role that is substantially the same.
  1. [17]
    The decision-maker considered the criteria pursuant to s 149A(2) of the PS Act and determined that whilst the Appellant satisfied the merit criteria, there was no continuing need for the Appellant to be employed in the role or a role which is substantially the same. 
  1. [18]
    The Appellant acknowledges that the role she is temporarily employed in is the substantive role of another employee who has been seconded to a higher duties position elsewhere in the agency. The Respondent submits that the secondment will cease on 28 March 2021 at which time the employee will return to their substantive role. Section 148(2)(a) of the PS Act provides that employment on tenure may not be viable or appropriate if the employment is to fill a temporary vacancy arising because a person is absent for a known period, such as on secondment. In these circumstances, I accept that there is not a continuing need for the Appellant to perform in the role in which she is currently temporarily placed, on the basis that the permanent employee will return to their substantive role on 28 March 2021. 

Genuine operational requirements of the Department

  1. [19]
    As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),[5] the phrase '… genuine operational requirements of the department',[6] would at least include consideration of the following:

… whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[7]

  1. [20]
    The Respondent's determination that there is no continuing need for the Appellant to perform a role that is substantially the same appears to be based on the uncertainty regarding the future of the Alarm Services work unit within QFES. I note the Respondent's submission that it would not be viable to appoint the Appellant to another position given the uncertainty of the future of Alarm Services. A consideration of the genuine operational requirements of the agency would reasonably include consideration of the future of the Alarm Services work unit which is undergoing significant change. Deliberations as to the future organisational model, which as I understand it is yet to be determined, is consistent with a need to have regard to the effective, efficient and appropriate management of the public resources of the agency. 
  1. [21]
    The Appellant submits that her skillset would deem her meritorious for roles below level, such as AO2 and AO3 roles as Administration Officer or Business Support Officer. This may well be the case, however, the Directive does not require the Respondent to search for all roles within the agency to identify any possible role for permanent appointment. The Directive only requires consideration of the continuing need to perform the role or a role substantially the same. I am satisfied that the Respondent had complied with this requirement. 
  1. [22]
    Section 149A(4) of the PS Act requires that the chief executive must give the person who has not had their employment converted a notice stating the reasons for the decision, the total period for which the person has been continuously employed in the department under s 149, and the number of times the persons' employment has been extended. I note that whilst the notice given to the Appellant included the reasons for the decision, it did not outline the total period of temporary employment or the number of times this employment has been extended. 
  1. [23]
    The Respondent attached to their submissions a 'placement history' which outlines the number of extensions to the Appellant's employment since 2017. Although this information should have been included in the notice to the Appellant in accordance with s 149A(4), I am not of the view that its absence materially impacted the decision. On the basis that I have considered all the material filed by parties as part of the appeal process, including the 'placement history', the absence of this information from the notice would not have had any material impact on the outcome of this appeal.
  1. [24]
    For the above reasons, the decision to decline to convert the Appellant's fixed term temporary employment to permanent was fair and reasonable in the circumstances.

Order

  1. [25]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1]IR Acts 562B(2).

[2]Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3]Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4]IR Acts 562B(3).

[5][2020] QIRC 203

[6]In Morison the phrase was discussed in the context of s 149C(4A)(a).

[7]Ibid [40].

Close

Editorial Notes

  • Published Case Name:

    Turner v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Turner v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2021] QIRC 76

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    10 Mar 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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